By Bill Dunn
Earlier this year, we touched upon FAA Grant Assurances with a brief discussion of FAA’s compliance program. When an airport sponsor accepts federal Airport Development Program (AIP) funds, they enter in a contractual agreement with the FAA which includes a written promise to abide by the 39 federal Grant Assurances. These assurances are codified in Federal law via Title 49 of the US code §47107. Remember that the Grant Assurances only apply at airports that have accepted AIP grants from the FAA.
Now you may be asking yourself why you should care. You should care because, if you are a consumer of services (tenant, business, itinerant operator) at a publicly funded airport that’s obligated and that has grant assurances in place, you have very specific rights granted under these assurances. And you can get the FAA to ensure that the airport treats all users of the facility equally. But, you must understand the processes for bringing these issues to the FAA in a timely manner. If the FAA rules against the airport, the agency has the authority to issue a number of sanctions against the airport.
There are two procedures under which a complaint against an airport may be brought before the FAA. The first is FAR Part 13.1, often called the informal dispute resolution process. Bringing a complaint against an obligated airport is as simple as writing a short letter to the FAA Airport District Office (ADO) that has oversight for the airport. Explain the alleged violation and note which of the 39 grant assurances you believe the airport is violating. Ask the FAA to investigate. In this case, the FAA will act as a mediator. They will forward your complaint letter to the airport sponsor and ask the sponsor to explain and respond to the allegation. The agency will normally attempt to get all the parties on the same page and resolve the issue satisfactorily locally.
The second process, which is much more detail oriented and process specific, is the FAR Part 16 process. The full name of Part 16 is “Part 16 – Rules of Practice for Federally Assisted Airport Enforcement Proceedings.(1)” Part 16 is much more detail oriented and requires the submission of extensive documentation to support the claim against the airport. It is also at times referred to as a quasi-legal process since there are appeals avenues available to the parties involved that move the complaint in to the Federal Court of Appeals system.
While pretty much anyone can bring an action against an obligated airport under Part 13, not everyone can bring a Part 16 complaint. Part 16 requires that a party or parties bringing a complaint must be directly and substantially affected by the alleged violation by the airport sponsor and be able to provide the documentation to substantiate the allegations brought against the airport. § 16.23 – Pleadings details the information that must be submitted as part of the filing with the FAA. In part, this section reads:
(a) A person directly and substantially affected by any alleged noncompliance or a person qualified under 49 CFR 26.105(c) may file a complaint under this part. A person doing business with an airport and paying fees or rentals to the airport shall be considered directly and substantially affected by alleged revenue diversion as defined in 49 U.S.C. 47107(b).
The Part 16 process is a complex one and one that often requires expert counsel and assistance in preparing, steering and arguing the complaint before the FAA and potentially a panel of federal judges.
There are currently so many Part 16 complaints alleging airport violations of federal grant assurances that the FAA has a two-year backlog! Because of this backlog, your best bet is to attempt informal resolution under FAR Part 13.1. Complaints under this part are resolved informally at the FAA Airport District Office (ADO) level whereas the formal complaint process under FAR Part 16 is a quasi-legal process that is adjudicated in the FAA headquarters offices.
When considering filing either type of complaint with the FAA, do your homework! Be certain of your facts. Before you do file a complaint, take the time to try to resolve your concerns directly with the airport manager. In most cases, airport managers will be willing to have a factual and discussion that is free of emotional content with you rather than have to defend their actions with the FAA and potentially have their future grant funding placed in jeopardy. In fact, one of the provisions in Part 16 requires that the complainant “certify” that they have attempted to resolve the issues informally. If you lead off your dispute with a Part 13 complaint, that process will meet the requirement.
Finally, if you have attempted to resolve the alleged grant violations informally without success, and you are now committed to proceeding with the Part 16 process, seek out specialized assistance to help craft your complaint in a manner that will pass the FAA’s scrutiny without being dismissed. Part 16 complaints are not for the faint of heart. The process is quite complex and time consuming.
Need some advice? Aviation Strategies staff and our legal partners have significant experience in both complaint processes.